FISA is not a tool; it's THE tool

In his press conference today, President Bush was asked why he felt it was necessary to "circumvent" FISA. This was his (characteristically incoherent) response:

You said that I have to "circumvent" it. Wait
a minute, that's a -- it's like saying, "You
know, you're breaking the law." I'm not.
See, that's what you got to understand: I am
upholding my duty and at the same time doing
so under the law and with the Constitution
behind me. That's just very important for you
to understand.

Secondly, the FISA law was written in 1978.
We're having the discussion in 2006. It's a
different world.

And FISA's still an important tool. It's an important
tool, and we still use that tool. But, also -- and
I looked. I said, 'Look, is it possible to conduct
this program under the old law?' And people
said, 'It doesn't work in order to be able do the
job we expect to us do.' And so, that's why I
made the decision I made. And, you know,
'circumventing' is a loaded word. And I refuse
to accept it, because I believe what I'm doing
is legally right.

When this president works without a script, it's always a wonder to behold. I never know whether to laugh or cry. Bush's reply, as near as I can decipher it, can be paraphrased as follows:
1) Although he doesn't like the word "circumvent," he pretty much admits that's exactly what he's doing (indeed, as Joel Achenbach points out, 'circumvent' is actually a bit of a euphemism under these circumstances).

2) He's "circumventing" FISA because it is an "old law" that "doesn't work in order to be able do the job we expect to us do." In other words, it's no longer suited for the post 9/11 world.

3) Nevertheless, FISA is still "an important tool," one the Bush administration continues to use.

It's this last point that really bothers me because, well, it makes no sense whatsoever. The purpose of FISA is not to provide the president with "a tool" for conducting domestic surveillance. Quite the opposite, actually. Prior to the passage of FISA, the president had virtually limitless "tools" at his disposal for conducting domestic surveillance for national security purposes. The only thing constraining his power was his own pledge to uphold the 4th amendment, a pledge which a number of presidents (particularly Nixon) clearly did not take very seriously. The purpose of FISA was to protect the constitutional rights of the American people by imposing reasonable restraints and oversight on the use of executive power. In other words, FISA was not designed to give the president an additional tool to use; it was designed to take away his tools and replace them with one multipurpose tool with built-in safeguards.

As I explained in my previous post, the only way FISA can accomplish its goal is by providing the exclusive means through which domestic national security surveillance may be conducted. If FISA's procedures are not exclusive, its requirements are rendered meaningless. If executive branch officials can pick and choose when they are going to follow FISA's procedures, they will clearly only utilize FISA in those instances where they are sure they can comply with its requirements. In all other cases they will utilize the secret alternative protocol which does not require probable cause or judicial approval. Having a two-track system makes a complete mockery of the statutory scheme. The new rule, in a nutshell, is that you must establish probable cause to conduct surveillance except when you can't.

Treating FISA as if it is intended to be just one of many tools at the president's disposal is so incredibly ass backwards that it boggles my mind. FISA is, without question, intended to be THE tool for conducting domestic national security surveillance. Otherwise, it is entirely meaningless.